From:
s47F
To:
Monica Vagg
Cc:
Cassie Botha; Vanessa MacBean; s47F
Subject:
Fair Work Ombudsman - MAT-13416-N7M7 [SEC=OFFICIAL]
Date:
Thursday, 5 August 2021 5:35:42 PM
Attachments:
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20210805 FWO Request for further information.pdf
Importance:
High
OFFICIAL
Dear Ms Vagg,
Further to our meeting on the 19th June, 2021 – please see attached correspondence.
Kind regards,
s47F
Enforcement
FAIR WORK OMBUDSMAN
s47F
GPO Box 9887 Adelaide SA 5001 | Level 2, 148 Frome Street, Adelaide SA 5000
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and documentation regarding any review or assessment of the ‘Buyout’ arrangement.
2. Clarification in respect of the Band 1 employees
In respect of the misclassification of Band 1 employees, please provide the following:
A full description of the cohort of employees impacted by the Band 1 misclassification including a
table or document which identifies the total number of employees misclassified, each employees’
name, date of commencement, position, division, location and employment status under the
relevant ABC Enterprise Agreement.
Details of how each category of the affected employees were and are classified.
An explanation as to how the affected employees were inaccurately classified as Band 1.
3. Access to PwC’s ful calculation methodology and approach to the Review
The FWO requests access to the document(s) which detail, in full, the methodologies and assumptions
relied on in the Review to calculate employment entitlements, including but not limited to:
An updated version of the ‘current status’ tables in the s47(1)(b), s47G document prepared by PwC
for the Meeting to include the data for the 2020/2021 Financial Year.
The methods applied to address missing or potentially inaccurate time and attendance data for
employees on ‘Buyout’ arrangements, including:
o documents identifying the cohorts of employees affected by the missing or inaccurate time and
attendance records and the full context for each cohort as to how the time and attendance
records became missing or inaccurate;
o confirmation of what alternative or supplementary data sources are being relied on;
o a full explanation of which cohort of employees the ‘Generic schedules’ apply to and the rules
and assumptions relevant to each;
o a full explanation of the s47(1)(b)
referred to within the s47(1)(b), s47G document
prepared by PwC for the Meeting; and
o the availability and use of any building access records are data to supplement the incomplete
data.
4. Clarification regarding the Review’s approach to set-off
The FWO requests further clarification on the ABC’s approach to set-off and the process for calculating
entitlements for employees on ‘Buyout’ arrangements; in particular:
the use of contractual payments such as market allowances, including how they are calculated, how
ABC proposes to use them to set-off entitlements derived from the ABC Enterprise Agreements, and
which entitlements the ABC proposes to set them off against;
further clarification as to the reviews or assessments for employees on ‘Buyout’ arrangements; in
particular:
o whether is it is correct that the majority of assessments occur (or should occur) on each
employee’s anniversary period or at the time of short-term distant assignments such as overseas
www.fairwork.gov.au | Fair Work Infoline: 13 13 94 | ABN: 43 884 188 232
postings;
o whether these assessments have already been completed or remain outstanding; and
o what is involved in the assessments and who initiates them; and
whether the ABC considers that all or most ‘Buyout’ arrangements displace the entitlement to the
transitional meal allowances under the ABC Enterprise Agreements and whether any employees on
‘Buyout’ arrangements are expected to have been underpaid the transitional meal allowance.
5. Confirmation of remedial measures to ensure ongoing compliance
The FWO requests confirmation of remedial measures in place, to be implemented, or being considered
to ensure ongoing compliance. This may include measures adopted following reviews and/or audits
undertaken as part of the ABC’s existing Enforceable Undertaking.
6. Clarification and assurances regarding the employee consultation process
The FWO requests further information about the proposed staff consultation process for employees on
Buyout arrangements, specifically:
whether employees and their representatives will be provided an opportunity to review the rules
and assumptions applied where time and attendance data is missing or potentially inaccurate;
whether employees and their representatives will be able to provide evidence in support of any
claims regarding the times actually worked or entitlements owed where there are concerns about
missing or potentially inaccurate employment data; and
how the ABC will manage claims from employees and their representatives where they do not agree
with the rules and assumptions that have been applied in a particular situation.
Next steps
Please provide the information requested in this letter by return email by 27 August 2021.
Should the ABC choose not to provide any of the information and/or documents requested on the basis
of legal professional privilege, please identify which information and/or document has not been disclosed
on this basis and the particulars of the privilege claim.
Finally, I note that the Fair Work Act 2009 (Cth) prohibits a person from knowingly or recklessly providing
false or misleading information or documents to a Fair Work Inspector exercising powers or performing
functions under the Commonwealth law. You may be liable to a civil penalty or civil remedy if you give
false or misleading information or provide false or misleading documents. The provision of false and
misleading information or documents is also a serious offence under the Criminal Code Act 1999 (Cth).
Should you wish to discuss any of the matters raised in this correspondence, please contact me on s47F
Yours sincerely
s47F
Director – Enforcement
Fair Work Ombudsman
www.fairwork.gov.au | Fair Work Infoline: 13 13 94 | ABN: 43 884 188 232
